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Transgender Legal Advisor

Dressing, Drinking and Driving

By Carolyn Woodward

Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at carolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.


The topic is drunk driving, and this is part II of a 2 part article. If you missed last month's article, I would recommend you read it now. Click Here

"Know Why I Stopped You?"

Ready to continue? OK. You're driving along, alone or with friends still in the car, and you see that sight we all dread - red and blue lights in the rear view mirror. It's the cops and they want to talk to you. Promptly pull over, turn off the engine, and then place, and keep, your hands on the wheel. This will help reassure the officer that you are not going to pull a gun. The officer will approach, either from the passenger side, or the driver's side and may hit you with that famous, and stupid, question, "Do you know why I stopped you?" First, don't give the answer I always want to give, which is, "Why, don't you know?" Don't suggest any reasons either - particularly nothing like, "I was weaving?" A polite "no" should be your answer. Make him tell you.

You Have The Right To Remain Silent

Engrave this inside the top of your skull, and refer to it: "YOU HAVE THE RIGHT TO REMAIN SILENT." You are obligated to give the cop license, registration, and in some states your proof of insurance. You don't have to answer questions, even at this point. This may make the cop turn a bit belligerent, but may keep you out of trouble, too. He is questioning you to gather evidence against you, and he does NOT have to read you your rights until such time as he arrests you, and not even then if he doesn't care to ask any questions of you. Oh, and a bit of soap box here - be sure to give your real license. If it has a male name and sex designation, so be it. If the officer gives you a hard time about being dressed, ignore it - you have the right to be cross-dressed. That is NOT the issue unless you end up in jail, but more on that later.

Now, to the specifics. He will tell you why you were stopped - if he says outright it is for DUI, or asks if you have been drinking, then you have some decisions to make. First, were you drinking at all? If not, then answer his questions. It will get you back on the road faster. If you have been drinking, then you might think about declining to answer his questions. If you have had one or two drinks you probably can't hurt yourself by stating so since that is not usually enough to matter. If you have had more, then seriously consider politely declining to answer questions. You will probably hurt yourself when it is time to deal with the matter later.

Now, some of you are probably asking yourself how the officer knows you have been drinking - especially if you get stopped for a tail light, or speeding. They are trained to look for certain things associated with alcohol consumption. The first is an odor of alcohol. This is caused by the metabolic byproducts of alcohol "burn-off" and are eliminated, in part, through the lungs and can be smelled on the breath. When the officer approaches the car and smells this, he will assume someone has been drinking. If you are alone, he will assume it is you. If you have passengers, you will probably be asked to exit the car, and the officer will get in your face - somewhat literally, to see if he can smell alcohol on your breath. One drink will produce this odor, so it doesn't give the officer anything to work with other than the fact that you probably consumed alcohol. (Yes, some medical conditions, such as ketosis, can mimic the odor.) He will also look for bloodshot eyes. While a thousand other things cause bloodshot eyes, so will alcohol. The two together will make the officer suspect that it is, in fact, alcohol. The officer will also look for speech difficulties - particularly slurring, as well as any unsteadiness in your walk.

If these things are found, then you will be asked to do field sobriety tests. In some states you can refuse to do these, but I won't say that is true for all states as I don't know. In California the law doesn't say you must, so you can refuse. (The exception is the Preliminary Alcohol Screen - a portable breathalyzer - which Ca. law specifically states you have a right to refuse if you are 21 or over.) Whether you should refuse, if legally able to do so, should be carefully considered. Refusal to comply can be argued in court, if it gets that far, as consciousness of guilt. You knew you would fail the tests because you were drunk, and so you refused - that sort of thing. If refusal is not an option by law, then there will be other consequences. Will you pass them? Let me just say that any defect in your performance will be noted in a negative manner - never mind you may never have done that particular test before.

Testing Procedures

What do they use for tests? Well, the latest and greatest is the Alcohol Gaze Nystagmus, or Horizontal Gaze Nystagmus test. Follow the pen, or whatever, with your eyes only. If they fail to track smoothly, and there are small, jerky movements back and forth, it is another indicator of alcohol consumption. Other things can also cause this, so it is considered in combination with the other tests. Many law enforcement agencies also have a portable breathalyzer they use. This is known as a Preliminary Alcohol Screen in California. Otherwise, you will be subject to balance and coordination tests. Now, assuming you are wearing heels, you have to decide whether to leave them on or not. Do whichever will work best for you. Personally, I would do better in heels than bare feet on gravel and would do that (I have tender feet). Don't, however, do it in heels and use that as an excuse later on - the officer will point out that you were welcome to remove them. Also, you can probably keep the fact of being cross-dressed from a jury as it is prejudicial and not relevant - unless you use the high heels excuse for poor balance. Then you've opened it up. So, seriously, do what works best.

Now, unless you have done so well on your field sobriety tests that there is no question that you are OK to drive and definitely under the limit, you will probably be arrested. You will be asked at this point to take a further chemical test for blood alcohool. I believe that in all states you have a choice of breath or blood tests, and some also have urine tests as a third option. (California is among these.) Which one do you take? That's a tough question for the most part, so let's start with the easy one. If you are truly over the line and know it, you might opt for the urine test if it is available. This is because it is the most unreliable of the tests - the reason many states dropped it. That's not because the alcohol can't be reliably measured - it can. It is because blood and urine alcohol are not going to be the same, and the difference varies widely, resulting in an unreliable conversion from the urine alcohol level to the blood alcohol level. It also gives you a sample you can have independently tested.

Next in accuracy is the breath test. The machine reads the alcohol level in a given volume of air, which is supposed to alveolar, or from deep in the lungs, which is converted to blood alcohol equivalents. It is a more accurate conversion, mostly, than urine, but it will still read slightly higher than actual blood alcohol in about 25% of cases. This is also the test usually pushed by the police because it is the easiest for them to do and gives an immediate read-out. You blow into the tube and there it is. Usually the machine will read an air blank to be sure it has no alcohol left in the chamber, then you blow a sample, it does another blank, you blow, and it does another blank. This may vary from jurisdiction. In California, that is a requirement for a valid test.

Another necessity is a fifteen minute observation period. That means a continuous observation period. This is stated as necessary in the operator's manual for the Intoxilyzer 5000, the most popular model in California. California has made that observation part of the required procedure. The reason is that burping or regurgitation can cause alcohol to come up from the stomach and contaminate the test. Some models of breathlyzer have detectors for this, but they don't work that well. You will seldom be watched for fifteen minutes continuously. Usually the person is put in the back of the car, then taken immediately to the machine. This can be used to challenge the test. Usually, it will not cause it to be thrown out, but can affect the weight a jury gives to the test. Some foreign substances in the mouth can also cause inaccurate readings. The machines do not keep breath samples for further anlysis. If you take a breath test you may be permitted by state law to have a blood or urine sample taken as well for independent analysis by a lab of your choice. Keep in mind, however, that the police will usually request their own analysis of that sample as well.

The most accurate is the blood test, and the one to use if you are quite sure you are under the limit, but the officer arrested you anyway. (It happens all the time.) It is most accurate because there is no conversion. The blood alcohol level is analyzed directly.

Now, I know of no state which permits you to refuse to take one of these tests. You must take one, or you will be hit with other consequences. First, if your matter goes to trial, this refusal can also be used as evidence that you knew you would test over the limit - and it is a powerful argument.

In most states, California among them, you will also face an administrative drivers license suspension for a refusal to take a blood, breath, or urine test. Also, if you are in California and you blow into the hand-held breathalyzer in the field, that is one of the field sobriety tests and DOES NOT count as a breath test for purposes of the implied consent statute which mandates one of the three tests. Don't assume because you blew into this at the roadside that you did your test. You did not, this is the Preliminary Alcohol Screen, and the officer is supposed to tell you this at the same time he is supposed to tell you of your right to refuse it.

How's Your Makeup?

You've taken your test. Now what? It depends on the officer's attitude, the level of intoxication, and whether someone can come get you immediately. The officer may let you go if you test out at a low level and he feels you can drive after all. If you test at or above the legal limit it may be that you could be released to a spouse. Or, you could end up waiting behind bars until you bail out or get taken before the court. In any case you will be photographed and fingerprinted - usually at the jail where some of you potential cell-mates can see you. How's your make-up? That photo will be in the records forever, so you should be at your best. "But," you say, "I have a change of clothes in the trunk and I can get my make-up off in two seconds flat. Can't I change before we get to the jail?" Ask, of course, but I've never seen an officer willing to agree to that. First, who knows what else you may have in the trunk - a weapon perhaps? Police officers are paranoid - and for good reason. Lots of them get shot every year. Secondly, taking you to jail in drag is just too much fun. Helps to break the monotony of yet another graveyard shift.

Face it, you are going to be humiliated, and you can't do a thing about it. Do, however, ask to be segregated. If your request is denied and you are placed in the general population you may have grounds for a lawsuit later if the other inmates do anything to you because of your manner of dress.

Finally, after you get out, consult a lawyer. I reiterate what I said last month, this is a complex area of law, and not for the do-it-yourselfer. Of course, the better course is to watch your alcohol intake, appoint a designated driver who is to drink NO alcohol at all, and who will get you to your home or motel - not back to your car. Have fun, but don't take foolish chances.

(Please take notice that this article is intended for general educational purposes and is not intended as specific legal advice. Remember, the laws differ from state to state. As always, I recommend consultation with a licensed attorney in your state for answers to specific questions and concerns.)

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